People v. Moore CA1/3

Filed 10/16/23 P. v. Moore CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,
A165429
v.
KENNETH LYNN MOORE, (Alameda County
Super. Ct. No. 67113B)
Defendant and Appellant.

Defendant Kenneth Lynn Moore appeals from the denial of his petition
for resentencing pursuant to Penal Code section 1170.95, now section 1172.6.1
In 1979, defendant was convicted of an array of over 50 crimes, including
burglary, robbery, and rape. Among these convictions were two for first
degree murder with special circumstances for which the trial court sentenced
defendant to life without possibility of parole. On appeal, defendant argues

1 All further statutory references are to the Penal Code.
While this appeal was pending, section 1170.95 was renumbered to
section 1172.6. (Stats. 2022, ch. 58, § 10; see People v. Strong (2022) 13
Cal.5th 698, 708, fn. 2.) As such, we will refer to section 1172.6, but we will
also refer to section 1170.95 as necessary to conform to the record.

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the court erroneously concluded he was ineligible for resentencing as a
matter of law. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Crimes and Procedural History
1. The Charged Crimes
Defendant and co-defendant David Moore,2 his brother, were charged
by amended information with dozens of crimes committed in the summer of
1978. As relevant here, defendant and David were charged with two counts
of first degree murder (§ 187) in the killings of Eileen Rogers and Laura
Muhlenbruch; they were also charged with two counts of robbery against the
same victims. As to the murder counts, the information included robbery-
murder and multiple-murder special-circumstance allegations against
defendant and David (former § 190.2, subds. (c)(3)(i), (c)(5)3), as well as

2 We will hereafter refer to David Moore by his first name for brevity and
to avoid confusion with defendant.
3 This former version of section 190.2 read: “The penalty for a defendant
found guilty of murder in the first degree shall be death or confinement in the
state prison for life without possibility of parole in any case in which one or
more of the following special circumstances has been charged and specially
found . . . to be true: [¶] . . . [¶] (c) The defendant was personally present
during the commission of the act or acts causing death, and with intent to
cause death physically aided or committed such act or acts causing death and
any of the following additional circumstances exists: [¶] . . . [¶] (3) The
murder was willful, deliberate, and premeditated and was committed during
the commission or attempted commission of any of the following crimes:
[¶] (i) Robbery in violation of Section 211; [¶] . . . [¶] (5) The defendant has in
this proceeding been convicted of more than one offense of murder of the first
or second degree . . . . [¶] (d) For the purposes of subdivision (c), the
defendant shall be deemed to have physically aided in the act or acts causing
death only if it is proved beyond a reasonable doubt that his conduct
constitutes an assault or a battery upon the victim or if by word or conduct he
orders, initiates, or coerces the actual killing of the victim.” (Former § 190.2,

2
firearm use allegations against them (§ 12022.5). As to the robbery counts,
the information alleged defendant and David used a firearm (§ 12022.5) and
caused great bodily injury (§ 12022.7).
A summary of the facts underlying the murders and other crimes
appears in our previous opinion, People v. Moore (1984) 162 Cal.App.3d 709
(Moore I).4 We need not provide the entire summary of facts here, though we
recount the facts of the murders to provide additional context: “[On the night
of August 18, 1978], Eileen Rogers and her daughter Laura Muhlenbruch
were killed in the garage of their apartment building. Both women were
found on the steps leading from the garage to the lobby; Laura was nude
except for shoes and socks and panties around her ankles. The two women
had been shot by handguns. One shotgun shell was found outside the garage.
Of three bullets taken from Muhlenbruch’s body, one was definitely fired by a
.38 Smith and Wesson found in the bushes behind 411 Fairmount [the
location of the Moore brothers’ apartment].” (Moore I, supra, 162 Cal.App.3d
at pp. 711, 713.) Another of the bullets in Muhlenbruch’s body, as well as a

subds. (c)(3)(i), (c)(5), (d), Stats. 1977, ch. 316, § 9, pp. 1257–1258, italics
added.)
4 Effective January 1, 2022, and before being renumbered, section
1170.95 was amended to restrict consideration of prior appellate opinions to
the procedural history of the case recited therein. (People v. Clements (2022)
75 Cal.App.5th 276, 292.) Our own analysis of the issues on appeal is based
on our review of the record of conviction, not the summary of facts in our
prior appellate opinion. But we mention the facts set out in our prior opinion
for additional context. In doing so, we note the trial court in this case
indicated it was not relying on the prior opinion’s factual recitations to reach
its decision, though defendant does not dispute that our prior opinion
accurately recites the trial evidence. Indeed, we note defendant himself
incorporates the facts we set out herein concerning the murder into his own
opening brief.

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bullet taken from Rogers’ back, could have been fired by a .38 caliber Colt
also found in the bushes behind 411 Fairmount. (Ibid.)
2. Instructions and Argument
The trial court instructed on two theories of first degree murder:
willful, deliberate, and premeditated murder, and felony murder. Though
other instructions and further details will be addressed post,5 we note the
following for now.
With regard to felony murder, the court instructed that the killing of a
human being that occurs as a result of the commission or attempted
commission of a robbery or rape, where the perpetrator had the specific
intent to commit such a robbery or rape, is first degree murder. The court
also instructed that if a human being is killed by any one of several persons
perpetrating or attempting to perpetrate a robbery or rape, all persons who
directly commit such crime, or with knowledge of the unlawful purpose of the
perpetrator, aid, promote, encourage, or instigate its commission, are guilty
of first degree murder.
The trial court also instructed for both the robbery-murder and
multiple-murder special circumstances, but emphasized the special
circumstances would come into play only if the jury found defendant guilty of
at least one first degree murder. The court told the jury it must “decide
separately each special circumstance charged in this case as to each of the
defendants.”

5 Defendant filed a motion to augment seeking a complete set of the
instructions given to the jury during the guilt phase that we granted. The
executive officer of the superior court responded by submitting a letter
stating the court was unable to locate the complete set of instructions. As
such, we are confined to reviewing a portion of a reporter’s transcript
included in the record that shows only part of the instructions to the jury.

4
 In advocating for murder convictions, the prosecutor’s closing argument
focused on the evidence that: the victims’ possessions were found in the
Moore brothers’ apartment and in defendant’s bedroom specifically; the
murder weapons were hidden in bushes outside of their apartment; bullets
taken from the crime scene and from the victims’ bodies were fired or could
have been fired from guns belonging to defendant and his brother; and the
modus operandi was the same as at other crime scenes to which the brothers
were linked. The prosecutor also focused on the jury instructions for first
degree felony murder and for aiding and abetting a first degree felony
murder.
3. The Verdicts
The jury found defendant guilty of both counts of first degree murder
and found the personal firearm use allegations and the robbery-murder and
multiple-murder special circumstances true. The verdict form for the murder
counts did not specify the theory of murder liability. The verdict forms for
the special-circumstance allegations mirrored the instructions, stating the
jury found true the allegations that defendant “was personally present and,
with the intent to cause death, did physically aid or commit the act causing
the death” of Eileen Rogers and Laura Muhlenbruch, and that those murders
were “wilful, deliberate, premeditated and committed during the commission
and attempted commission of a Robbery.” (Italics added.)
Aside from the murder convictions and special circumstances findings,
the jury convicted defendant of an additional 56 counts, including the
robberies of the two murder victims. With regard to those robberies, the jury
found true the allegations that defendant personally used a firearm during
the robberies and inflicted great bodily injury on the victims.

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 In May 1980, after the jury was unable to agree as to a penalty, the
trial court sentenced defendant to life without the possibility of parole for the
murder counts. This division affirmed the judgment in 1984. (Moore I,
supra, 162 Cal.App.3d at p. 719.)
B. Proceedings on the Section 1170.95 Petition
In February 2019, defendant filed a section 1170.95 petition. The
petition checked boxes indicating that: (1) a charging document was filed
against defendant allowing the prosecution to proceed under a theory of
felony murder or murder under the natural and probable consequences
doctrine; (2) he was convicted of first or second degree murder under the
felony-murder rule or natural and probable consequences doctrine; and (3) he
could not now be convicted of first or second degree murder because of
changes made to sections 188 and 189 effective January 1, 2019. Defendant
also checked boxes indicating that he was convicted of first degree felony
murder and that he could not now be convicted of that crime because he was
not the actual killer, he did not aid and abet the murder with intent to kill,
and he was not a major participant in the underlying felony who acted with
reckless indifference to life.
The trial court appointed counsel for defendant and issued an order
requesting briefing as to whether defendant “comes within” and is entitled to
relief under section 1170.95, but indicated the briefing order was not an order
to show cause. After the parties filed additional briefing, the court denied the
petition for failure to state a prima facie case for relief. The court noted the
record of conviction showed the jury made express findings that defendant
physically aided or committed the act or acts causing death with the intent to
kill, and that defendant was precluded from relief under section 1170.95 as a
matter of law. This appeal followed.

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 DISCUSSION
The question presented is whether the record of conviction establishes
as a matter of law that defendant is guilty of murder under a still-valid
theory. (§ 1172.6, subd. (a)(3).) We conclude the instructions and jury
verdicts in this case establish, at the very least, that defendant is guilty of
first degree felony murder under section 189, subdivision (e)(2)
(“section 189(e)(2)”).
A. Overview of Senate Bill No. 1437
Prior to Senate Bill No. 1437 (Senate Bill 1437), “[u]nder the old felony-
murder doctrine, a defendant was liable for first degree murder if their
confederate killed someone while they (the defendant) participated in the
commission or attempted commission of a qualifying felony.” (People v. Lopez
(2023) 88 Cal.App.5th 566, 574 (Lopez).) “The necessary mental state was
simply the intent to commit a qualifying felony” and “malice was imputed to
the participant based on their willingness to commit a felony our Legislature
deemed ‘ “inherently dangerous to human life.” ’ ” (Ibid.)
In 2018, the Legislature enacted Senate Bill 1437 which “ ‘amend[ed]
the felony[-]murder rule and the natural and probable consequences doctrine,
as it relates to murder, to ensure that murder liability is not imposed on a
person who is not the actual killer, did not act with the intent to kill, or was
not a major participant in the underlying felony who acted with reckless
indifference to human life.’ ” (People v. Gentile (2020) 10 Cal.5th 830, 842
(Gentile).)
Senate Bill 1437 amended the felony-murder rule by adding
section 189, subdivision (e): “ ‘A participant in the perpetration or attempted
perpetration of [qualifying felonies] in which a death occurs is liable for
murder only if one of the following is proven: [¶] (1) The person was the

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actual killer. [¶] (2) The person was not the actual killer, but, with the intent
to kill, aided, abetted, counseled, commanded, induced, solicited, requested,
or assisted the actual killer in the commission of murder in the first degree.
[¶] (3) The person was a major participant in the underlying felony and acted
with reckless indifference to human life, as described in subdivision (d) of
Section 190.2.’ ” (Gentile, supra, 10 Cal.5th at p. 842.)
Senate Bill 1437 also amended the natural and probable consequences
doctrine by adding section 188, subdivision (a)(3) (section 188(a)(3)):
“ ‘Except [for felony-murder liability] as stated in subdivision (e) of
Section 189, in order to be convicted of murder, a principal in a crime shall
act with malice aforethought. Malice shall not be imputed to a person based
solely on his or her participation in a crime.’ ” (Gentile, supra, 10 Cal.5th at
pp. 842–843.)
Additionally, Senate Bill 1437 added section 1170.95 (later renumbered
section 1172.6), which “provides a procedure for convicted murderers who
could not be convicted under the law as amended to retroactively seek relief.”
(People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis); Stats. 2022, ch. 58, § 10.)
Under the statute, “an offender must file a petition in the sentencing court
averring that: ‘(1) A complaint, information, or indictment was filed against
the petitioner that allowed the prosecution to proceed under a theory of
felony murder or murder under the natural and probable consequences
doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree
murder following a trial or accepted a plea offer in lieu of a trial at which the
petitioner could be convicted for first degree or second degree murder[;]
[¶] [and] (3) The petitioner could not be convicted of first or second degree
murder because of changes to Section 188 or 189 made effective January 1,
2019.’ ” (Lewis, at pp. 959–960.) When a petition complies with these three

8
requirements, the court must determine whether the petitioner has made a
prima facie showing for relief. (Id. at p. 960.)
The prima facie inquiry under section 1172.6, subdivision (c), is
“limited.” (Lewis, supra, 11 Cal.5th at p. 971.) The trial court generally
takes the petitioner’s factual allegations as true and must issue an order to
show cause if the petitioner would be entitled to relief if his or her factual
allegations were proved. (Ibid.) But, after the appointment of counsel and
the opportunity for briefing, the court may also consider the record of
conviction to determine whether a petitioner has made a prima facie case.
(Id. at pp. 957, 971.) The record of conviction includes closing arguments,
jury instructions, verdict forms, and to a limited extent, prior appellate
opinions in the case. (People v. Jenkins (2021) 70 Cal.App.5th 924, 935.) “ ‘If
the petition and record in the case establish conclusively that the defendant
is ineligible for relief, the trial court may dismiss the petition.’ ” (People v.
Wilson (2023) 14 Cal.5th 839, 869.)
We review the trial court’s determination that petitioner is ineligible
for relief under section 1172.6 as a matter of law de novo. (People v. Williams
(2022) 86 Cal.App.5th 1244, 1251.)
B. Analysis
To reiterate, under section 189(e)(2), felony-murder liability lies when a
defendant who “was not the actual killer, but, with the intent to kill, aided,
abetted, counseled, commanded, induced, solicited, requested, or assisted the
actual killer in the commission of murder in the first degree.”
Section 189(e)(2) has a mens rea—intent to kill—and an actus reus—aiding,
abetting, counseling, commanding, inducing, soliciting, requesting, or
assisting the actual killer in the commission of murder in the first degree.

9
(Lopez, supra, 88 Cal.App.5th at p. 581.) Below, we examine whether the
record of convictions establishes these statutory requirements.
1. Section 189(e)(2): Mens Rea
We have no difficulty concluding the record of conviction establishes
that defendant acted with intent to kill, the mens rea required by
section 189(e)(2). The trial court instructed as to the robbery-murder special-
circumstance allegation that the jury must find “(1) the murder was willful,
deliberate and premeditated, and (2) the defendant was personally present
during the commission of the act or acts causing death, and (3) that the
defendant with intent to cause death physically aided or committed the act or
acts causing death, and (4) the murder was committed during the commission
of a robbery.” (Italics added) Similarly, with regard to the multiple-murder
special circumstance, the court instructed the jury must find “(1) the
defendant was personally present during the commission of the act or acts
causing death; (2) the defendant, with intent to cause death, physically aided
or committed the act or acts causing death; and (3) the defendants or each of
them have been convicted of first degree murder, and an additional count of
murder, which can be either first or second degree.” (Italics added)
Furthermore, the court’s instructions on the special circumstances explained
to the jury that the special-circumstance findings had to be made as to each
particular defendant: “You must decide separately as to each of the
defendants as to the existence or non-existence of each special circumstance
charged in this case. If you cannot agree upon your finding as to all of the
defendants but can agree as to one of them, you must make your finding as to
the one upon which you do agree.”
The jury found both special-circumstance allegations true. The verdict
forms for the special-circumstance allegations reflect findings that defendant

10
“was personally present and, with the intent to cause death, did physically
aid or commit the act causing the death of” Eileen Rogers and Laura
Muhlenbruch and that the murders were “wilful, deliberate, premeditated
and committed during the commission and attempted commission of a
Robbery . . . .” (Italics added.)
Thus, the record of conviction establishes the jury found defendant
acted with intent to kill, the mens rea required by section 189(e)(2). This
refutes any conclusion that malice was merely imputed to him.
2. Section 189(e)(2): Actus Reus
The question whether the record of conviction establishes defendant
committed the actus reus required by section 189(e)(2) requires a bit more
discussion.
(a) The crime that was aided and abetted
Again, the actus reus required by section 189(e)(2) is that a defendant
“aided, abetted, counseled, commanded, induced, solicited, requested, or
assisted the actual killer in the commission of murder in the first degree.”
(Italics added.) One issue of statutory interpretation that has arisen is
whether liability for murder under this portion of the statute requires that
the prosecutor prove the defendant aided, abetted, or assisted the killing
itself, or alternatively, that the defendant aided, abetted, or assisted in the
qualifying felony during which the killing occurs.
Support for the latter view is found in the following current language of
section 189, subdivision (a), which Senate Bill 1437 did not amend: “All
murder that is . . . committed in the perpetration of, or attempt to perpetrate,
. . . robbery . . . is murder of the first degree.” Additionally, the actus reus
language in section 189(e)(2) is nearly identical to the language concerning
the felony-murder special circumstance in section 190.2, subdivision (c),

11
which reads: “Every person, not the actual killer, who, with the intent to kill,
aids, abets, . . . or assists any actor in the commission of murder in the first
degree shall be punished by death or imprisonment in the state prison for life
without the possibility of parole if one or more of the special circumstances
enumerated in subdivision (a) has been found to be true under Section 190.4.”
(Italics added; People v. Ervin (2021) 72 Cal.App.5th 90,106 (Ervin).)
In People v. Dickey (2005) 35 Cal.4th 884 (Dickey), the California
Supreme Court examined the meaning of the foregoing italicized language in
section 190.2, subdivision (c) (formerly § 190.2, subd. (b)) and expressly
rejected the argument that the felony-murder special circumstance required
proof that the defendant assisted in the killings themselves. (Dickey, at
pp. 900–901.) Following the passage of Senate Bill 1437, the Court of Appeal
similarly held in Lopez, supra, 88 Cal.App.5th 566, that the actus reus
required by section 189(e)(2) is an act that assists in the commission of the
underlying felony or attempted felony that results in death, not the killing
itself. (Lopez, at pp. 577–578, review den. May 31, 2023, S279347.) Lopez
relied on Dickey, reasoning that section 189(e)(2)’s current inclusion of
language nearly identical to the language interpreted in Dickey signaled that
the Legislature intended the same meaning when enacting Senate Bill 1437.
(Lopez, at pp. 577–578.)
Lopez offered the following additional reasons supporting its
interpretation of section 189(e)(2): (1) section 189, subdivision (a) defines
murder in the first degree as murder committed in the perpetration or
attempted perpetration of a qualifying felony, so assisting in a qualifying
felony in which death occurs is the same as assisting the actual killer in
committing first degree murder (Lopez, supra, 88 Cal.App.5th at p. 578);
(2) the purpose of Senate Bill 1437 was to stop imputing malice to defendants

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in order to justify a murder conviction, but a defendant who commits a
qualifying felony while harboring express malice (see § 188, subd. (a)(3)) does
not need that protection, so “there is no reason to interpret the actus reus
requirement as anything different than what the felony-murder actus reus
requirement was before Senate Bill 1437” (Lopez, at p. 578); and (3) the
alternative interpretation (favored by the dissent in Lopez) actually makes it
“easier” to obtain a murder conviction for defendants who harbor the less
culpable state of mind of “reckless indifference to human life than for those
who acted with express malice,” since the prosecution would only have to
prove “they played a major role in the felony to be guilty of first degree
murder under section 189” (Lopez, at p. 579).
The alternative view—espoused by the dissent in Lopez—is that
section 189(e)(2) narrowed the actus reus for felony-murder liability to aider
and abettors who aided, abetted, or assisted in the killing itself. (Lopez,
supra, 88 Cal.App.5th at p. 583, dis. opn. of Raphael, J.) The dissent
reasoned this interpretation of section 189(e)(2)’s actus reus was supported
by the statutory language, which did not simply say the actus reus required
only that a defendant assisted in an underlying felony. (Lopez, at pp. 584–
585.) The dissent also reasoned that the majority’s interpretation would
render section 189(e)(2)’s actus reus language surplusage “because a person
convicted on a section 189(a) felony-murder theory must have assisted in a
qualifying felony in which death occurs.” (Lopez, at p. 585.) The dissent was
unpersuaded by Dickey because the decision predated Senate Bill 1437.
(Lopez, at pp. 586–587.) Moreover, unlike the special circumstance in Dickey,
which applied to a “nonkiller who with intent to kill ‘aids . . . any actor in the
commission of murder in the first degree,’ ” section 189(e)(2) limits felony-

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murder liability to “nonkillers who with intent to kill ‘aided . . . the actual
killer in the commission of murder.’ ” (Lopez, at p. 587.)
To buttress its position, the dissent relied on Ervin, supra, 72
Cal.App.5th 90. In Ervin, a jury convicted the defendant of burglary,
robbery, and first degree murder, and found true two felony-murder special-
circumstance allegations, but found not true an allegation the defendant
personally used a firearm as to the murder count. (Ervin, at p. 98.) In
reversing the denial of the defendant’s section 1170.95 petition at the prima
facie stage (id. at p. 95), Ervin reasoned the defendant was not categorically
ineligible for relief because the jury did not find him to be the actual shooter,
and so potentially found him guilty of first degree murder under the former
first degree felony murder rule. (Ervin, at pp. 107–108.) Ervin explained,
“under the former felony-murder rule, any participant in a robbery could be
liable for murder without a finding of malice if someone was killed during the
robbery,” while “the current felony-murder rule more specifically requires the
jury to find a defendant aided and abetted ‘the actual killer in the commission
of murder in the first degree.’ ” (Id. at pp. 94, 106.) Rejecting the People’s
argument that the true findings on the felony-murder special-circumstance
allegations precluded relief, Ervin explained “[t]he felony-murder special
circumstance generally requires the jury to find a defendant aided and
abetted ‘any actor in the commission of murder in the first degree,’ while the
current felony-murder rule more specifically requires the jury to find a
defendant aided and abetted ‘the actual killer in the commission of murder in
the first degree.’ ” (Id. at pp. 104, 106.) In sum, the Lopez dissent concluded,
“As in Ervin, a finding of an act that aided the underlying felony is not
necessarily enough for a murder conviction under [section 189,
subdivision (e)(2)], as the Legislature required an act, done with intent to kill,

14
that aided the killer in committing the murder.” (Lopez, supra, 88
Cal.App.5th at p. 588.) Notwithstanding the vigorous dissent in Lopez, the
California Supreme Court denied review of that decision in May 2023.
(Lopez, supra, 88 Cal.App.5th 566, review den. May 31, 2023, S279347.)
After due consideration, we are more persuaded by the analysis of the
majority in Lopez, particularly given the language of section 189,
subdivision (a), and Dickey, 35 Cal.4th 884, neither of which the Ervin court
discussed. Dickey is not rendered irrelevant simply because it predated
Senate Bill 1437. In Dickey, the Supreme Court interpreted a phrase almost
identical to the phrase used in section 189(e)(2), providing strong support for
the majority’s position in Lopez. We thus conclude the actus reus element of
section 189(e)(2) requires an aider and abettor to have aided, abetted, or
assisted a qualifying felony during which a killing occurs.
We acknowledge the point of the dissent in Lopez that section 189(e)(2)
requires that a defendant’s aiding and abetting must be provided to the
“actual killer.” (Lopez, supra, 88 Cal.App.5th at p. 587.) But that
requirement is met where, as here, the special-circumstance instruction tells
the jury it has to find the “defendant with intent to cause death physically
aided or committed the act or acts causing death.” (Italics added.) And as the
trial court below instructed: “A defendant shall be deemed to have physically
aided in the act or acts causing death only if it is proved beyond a reasonable
doubt that his conduct constitutes an assault or battery . . . upon the person
killed, or if by word or conduct he orders, initiates or coerces the actual
killing of the victim.” (Italics added.) Though this latter instruction
narrowed the ways in which defendant could have physically aided the act
causing death, it nonetheless required the jury to find that defendant aided
the killer in the killing act.

15
 Without addressing the actus reus analyses of Lopez, or Dickey, or even
Ervin, defendant argues that current law requires a showing that he “acted
with knowledge that the perpetrator (his brother) intended the victims’
death[s], with an intent to facilitate or encourage his brother to kill the
victims.” Setting aside the circumstance that the jury actually determined
that defendant himself acted with the intent to cause the victims’ deaths, his
reliance on People v. Chiu (2014) 59 Cal.4th 155, People v. McCoy (2001) 25
Cal.4th 1111, and People v. Offley (2020) 48 Cal.App.5th 588, remains
unavailing. Chiu and McCoy pre-date Senate Bill 1437, and more to the
point, none of those cases meaningfully addressed the felony-murder
doctrine. (Chiu, at p. 158; McCoy, at pp. 1118, 1122–1123; Offley, at p. 595 &
fn. 4.)
(b) Application of the actus reus requirements
Having concluded section 189(e)(2)’s actus reus requirement means
that an alleged aider and abettor must have “aided, abetted . . . or assisted”
the qualifying felony during which the killing occurs, we turn to address
whether the record of conviction establishes the requisite actus reus.
Aiding and abetting has its own act and mental state elements.
Specifically, “a person aids and abets the commission of a crime when he or
she, acting with (1) knowledge of the unlawful purpose of the perpetrator;
and (2) the intent or purpose of committing, encouraging, or facilitating the
commission of the offense, (3) by act or advice aids, promotes, encourages or
instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d
547, 561; People v. Koenig (2020) 58 Cal.App.5th 771, 799.)
Here, the trial court instructed on two theories of first degree murder:
willful, deliberate and premeditated murder, and felony murder. The
instructions for felony-murder liability as an aider and abettor instructed: “if

16
a human being is killed by any one of several persons engaged in the
perpetration of or attempt to perpetrate the crime of robbery . . . , all persons
who either directly and actively commit the act constituting such crime, or
who with knowledge of the unlawful purpose of the perpetrator of the crime,
aid, promote, encourage, or instigate by act or advice its commission . . . are
guilty of murder in the first degree.” (Italics added.) The court also
instructed that “a person aids and abets the commission of a crime if he
knowingly and with criminal intent aids, promotes, encourages or instigates
by act or advice, or by act and advice, the commission of such crime.” (Italics
added.)
Here, the jury found defendant guilty of robbery against the murder
victims. Robbery, as the trial court instructed, requires proof of the specific
intent to permanently deprive the owner of their property.
Taken together, the foregoing instructions and the completed jury
verdict forms establish that: (1) defendant acted with knowledge of the
unlawful purpose of the perpetrator, i.e., to rob; (2) he, too, specifically
intended to commit the robbery; and (3) he aided in the commission of the
crime. Thus, not only does the record of conviction show the mens rea
element of section 189(e)(2) has been met (i.e., defendant acted with the
intent to cause the victims’ deaths), the record also shows the statutory actus
reus requirement has been established (i.e, defendant intended to cause the
victims’ deaths while aiding, abetting, or assisting in the qualifying robbery
felony during which the killings occurred).
Having so concluded, we need not and do not discuss defendant’s
argument that the jury could have concluded he was guilty of first degree
murder “as a natural and probable consequence of robbery.” Nor do we need
to address his further contentions that the trial court’s order cannot be

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upheld based on the true finding as to the firearm use allegations, or on the
ground that defendant was a major participant who acted with reckless
indifference to human life.
DISPOSITION
The order denying defendant’s section 1170.95 petition is affirmed.

_________________________
Fujisaki, J.

WE CONCUR:

_________________________
Tucher, P.J.

_________________________
Petrou, J.

People v. Moore (A165429)

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